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2022 (3) TMI 190 - AT - Central ExciseCENVAT Credit - CVD paid by availing exemption Notification No. 12/12-Cus dated 17.03.2012 - HELD THAT - The facts is not under disputes that the appellant have paid the CVD on imported coal in terms of exemption Notification No. 12/12-Cus. The restriction for availing of credit on Excise duty paid is given in Rule 3 (i) - From the proviso to Rule 3 (i) of CCR, 2004, it is clear that the restriction is provided only in respect of such duty which is paid by availing the exemption Notification No. 01/2011-CE dated 01.03.2011 or under Notification No.12/12-CE dated 17.03.2012. In the present case the CVD was paid by not availing the aforesaid excise notifications but it was paid by availing Customs Notification No. 12/2012-Cus, therefore, the restriction provided in Rule 3 (i) and proviso thereof shall not be applicable to the facts of the present case. Identical issue decided in the case of M/S. ASAHI SONGWON COLORS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE ST., VADODARA 2018 (9) TMI 159 - CESTAT AHMEDABAD where it was held that Even if the importer wants to avail the exemption of N/N. 12/2012-CE for payment of CVD, the same will not be available to the importer and Credit is allowed. The impugned order is not sustainable - Appeal allowed - decided in favor of appellant.
Issues:
Entitlement for Cenvat Credit in respect of CVD paid by availing exemption Notification No. 12/12-Cus dated 17.03.2012. Analysis: The issue in this case revolves around the entitlement of the appellant for Cenvat Credit concerning the Countervailing Duty (CVD) paid by availing exemption under Notification No. 12/12-Cus dated 17.03.2012. The Commissioner (Appeals) initially held that the appellant is not entitled to Cenvat Credit as per Rule 3 (i) and its proviso. The appellant contested this decision by filing an appeal. The appellant's consultant argued that since the CVD was paid by availing the customs exemption notification and not the excise notifications mentioned in Rule 3 (i), the proviso should not disallow the Cenvat Credit. Reference was made to a previous Tribunal's Final Order that supported the appellant's position. The Revenue, represented by the Superintendent, relied on judgments from the Hon'ble High Court of Gujarat and the Hon'ble Supreme Court to support their contention against allowing the Cenvat Credit. The Tribunal carefully examined the submissions and records. It was established that the CVD was paid on imported coal under Customs Notification No. 12/12-Cus, not the excise notifications specified in Rule 3 (i). The Tribunal highlighted the specific provisions of Rule 3 (i) and its proviso, emphasizing that the restriction applies only to duties paid under the excise notifications mentioned. The Tribunal referenced its previous decision in the appellant's case, where a similar issue was resolved in favor of allowing the Cenvat Credit for CVD paid under Customs Notification No. 12/12-Cus. Further, the Tribunal distinguished a cited judgment involving CVD on imported coal paid by availing different excise notifications, emphasizing that the present case involved a distinct set of facts. The Tribunal concluded that the impugned order disallowing the Cenvat Credit was not sustainable based on the discussions, supporting case law, and the precedent set in the appellant's earlier case. Consequently, the impugned order was set aside, and the appeal was allowed with consequential relief as per the law. In conclusion, the Tribunal's detailed analysis focused on the specific provisions of Rule 3 (i), the nature of the duty paid, and the relevant exemption notifications to determine the appellant's entitlement to Cenvat Credit for the CVD paid under the Customs Notification. The decision was grounded in legal interpretations, precedents, and a thorough examination of the facts and applicable laws.
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